Filed 6/17/26 Torres v. Petro Source Investments CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHRISTOPHER TORRES et al., D085444
Plaintiffs and Appellants,
v. (Super. Ct. No. CIVDS1906092)
PETRO SOURCE INVESTMENTS, INC.
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Bernardino
County, David E. Driscoll, Judge. Affirmed.
Metzger Law Group, Raphael Metzger, Scott P. Brust and Brian P.
Barrow for Plaintiffs and Appellants.
Jones Day and Edward Patrick Swan, Jr.; Trials Law Group and
Stefanie Warren; Complex Appellate Litigation Group, Johanna Schiavoni
and Melanie Gold for Defendant and Respondent Petro Source Investments,
Inc.
Edlin Gallagher Huie + Blum and Jeremy D. Huie; Harris Beach
Murtha Cullina, Daniel R. Strecker and Brian D. Ginsberg for Defendant and
Respondent Safety-Kleen Systems, Inc.
Everett Dorey, Seymour B. Everett III, Matthew P. Dickson and
Michael Sweeney for Defendant and Respondent Oatey Co.
In 1998, counsel for Appellants Christopher Torres and his wife,
Melissa Torres, deposed then-current or former employees of Safety-Kleen
Corporation (SK Corp.) in connection with a lawsuit—Talley v. Safety-Kleen
Corporation (Super. Ct. Orange County, 1999, No. 784605)—that alleged the
entity’s solvent had caused a plaintiff’s blood cancer. More than 20 years
later, Appellants filed suit against, among other entities, Respondents Petro
Source Investments, Inc.; Safety-Kleen Systems, Inc. (SK Systems); Oatey
Co.; and B’Laster, LLC, alleging that in the course of his employment
Christopher was exposed to harmful chemical products and solvents supplied
or manufactured by Respondents, which caused his kidney cancer. The trial
court granted motions in limine filed by SK Systems and Petro seeking to
exclude 23 of the Talley depositions in Appellants’ action. Under either abuse
of discretion or de novo review, we conclude the trial court properly excluded
the depositions.
Appellants have forfeited their claims (1) the motions in limine and the
subsequent ruling were defectively overbroad and (2) the testimony is
admissible as nonhearsay. They have also forfeited their claim as to Petro,
Oatey, and B’Laster that the testimony was admissible under Evidence Code
section 1291(a)(2).
We conclude the testimony was not admissible as to SK Systems under
section 1291(a)(2) because SK Corp. lacked a similar “interest and motive” to
cross-examine the Talley deponents as SK Systems has at trial in the instant
matter. (§ 1291(a)(2).) Appellants fail to establish there was agreement that
the depositions would serve as trial testimony, and the “practical
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considerations” articulated in Berroteran v. Superior Court (2022) 12 Cal.5th
867, 901, do not weigh in favor of the testimony’s admissibility.
We further determine that testimony found inadmissible under
section 1291(a)(2) cannot be admitted under another hearsay exception.
Accordingly, the testimony is not admissible as a party or authorized
admission, as Appellants argue.
Finally, we conclude Code of Civil Procedure section 2025.620 does not
permit the prior deposition testimony’s admission, as the only subsection
applicable to former deposition testimony does not apply here because the
parties are not the same as in the prior action.
Accordingly, we affirm the court’s judgment in Respondents’ favor
following the grant of SK Systems’ and Petro’s motions in limine.
I.
A.
In May 2024, SK Systems moved in limine “to exclude certain prior
deposition testimony.” (Capitalization omitted.) Specifically, SK Systems
sought to exclude 23 depositions taken by Appellants’ counsel in the 1998
Talley action, and the portions of those depositions admitted at the 2012 trial
in Gillan v. Safety-Kleen Systems, Inc. (Super. Ct. L.A. County, 2012,
No. BC358325).
SK Corp. was a party in Talley, and it appeared or was represented at
the depositions. It cross-examined a handful of the 23 deponents, and ten of
the 23 deponents were SK Corp. employees at the time of the depositions.
But in June 2000, SK Corp. filed for bankruptcy. SK Corp. ceased to exist,
and SK Systems emerged from the Chapter 11 bankruptcy in 2003 as a
debtor-in-possession.
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The Gillan plaintiffs were also represented by Appellants’ counsel.
Over SK Systems’ objection, the Gillan plaintiffs introduced portions of ten of
the 23 Talley depositions at the 2012 trial, which ended in a mistrial.
Petro joined SK Systems’ motion and filed its own motion in limine to
exclude the same deposition testimony, as well as deposition testimony from
other cases in which it had no notice of the depositions. B’Laster joined both
motions. Oatey did not join.
B.
Appellants opposed SK Systems’ and Petro’s motions. Their opposition
was supported by a declaration from their counsel, Raphael Metzger, who
took the Talley depositions. He declared his firm had multiple suits pending
against SK Corp. at the time the out-of-state depositions were taken and that
he videotaped them to use as affirmative evidence in those other cases.
Metzger indicated he intended to offer unidentified excerpts from 21 of
the 23 Talley depositions, mostly of former officers or managing agents of SK
Corp. He sought to introduce the testimony to prove liability, authenticate
documents, and show knowledge of hazards. Without the excerpts, Metzger
declared he “will not be able to prove [his] clients’ case.”
Metzger indicated the Talley depositions were taken “at a time of great
turmoil for” SK Corp. At the time, SK Corp. and some of its officers were
subjects in federal investigations, and several officers had left the company.
Many of these deponents were beyond the subpoena power of California
courts, so Metzger attested that he “made it clear to all concerned that the
depositions would be used as trial testimony.” At the time, Metzger also
feared SK Corp. may file for bankruptcy, as it eventually did. Counsel for SK
Corp. cross-examined eight of the deponents during their depositions.
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Metzger contended the Talley transcripts were admissible under
Evidence Code sections 1220 and 1222 as admissions by a party opponent or
authorized admissions. He attached the entire transcripts as exhibits to his
declaration “so they are ‘in the record.’”
C.
At an apparently unreported hearing—the record on appeal contains no
reporter’s transcript—the court heard argument on the motions in limine.
At a subsequent hearing, the trial court granted SK Systems’ and
Petro’s motions in limine. The court’s 12-page written ruling granting the
motions in limine found the former deposition testimony inadmissible as to
SK Systems on multiple grounds.
First, the court found the testimony was not admissible as admissions
of a party opponent or authorized admissions under Evidence Code
sections 1220 and 1222. As an initial matter, only the depositions of those
employed by SK Corp. at the time of the depositions could potentially fall
within this exception, and Appellants failed to provide adequate evidence
they were authorized to make statements on SK Corp.’s behalf. And, due to
the intervening bankruptcy, SK Systems was a distinct entity from SK Corp.
such that the statements of SK Corp.’s employees could not be imputed to it.
Finally, because the testimony in question is discovery deposition testimony,
section 1291(a)(2) “expressly and directly controlled,” even over “any so-called
admissions contained” in the depositions.
Second, the court found the former deposition testimony not admissible
under Code of Civil Procedure section 2025.620(b). The court concluded the
subdivision “only applies to depositions taken between the parties in the same
action,” as “[t]o do otherwise would essentially negate Evidence Code
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[section ]1291.” The court concluded section 2025.620 was further
inapplicable because SK Systems “was not a party to the Talley action.”
Third, the court found the former deposition testimony was not
admissible under the prior testimony hearsay exception of Evidence Code
section 1291(a)(2) as interpreted by Berroteran. Because Appellants
presented no evidence of any agreement between the parties that the
deposition testimony was to be used at trial, the court analyzed Berroteran’s
“‘key practical considerations’” to determine whether the evidence was
admissible. The court concluded Appellants did “not meet their burden of
overcoming the general rule precluding admission of such discovery
deposition testimony” because “[t]he weight of these practical considerations
do not demonstrate [SK Corp.] had motive and an interest to thoroughly
cross-examine these deponents back in 1998-1999.”
As to Petro, the court found the prior deposition testimony inadmissible
because (1) Petro was not a party in Talley, (2) the deponents were not Petro
employees, (3) Petro had no opportunity to examine the deponents or even
notice of their depositions, and (4) Petro did not agree to use the depositions
for trial either in Talley or any other subsequent proceeding.
D.
Immediately after granting these motions in limine, the court advanced
the trial and granted Respondents’ motions for judgment in their favor and
nonsuit “on the grounds that [Appellants] lack admissible evidence to make
out a prima facie case on each of [Appellants]’ causes of action.”
II.
A.
As an initial matter, the parties dispute the applicable standard of
review. Respondents argue the court’s decision granting the motions in
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limine is reviewed for abuse of discretion. (See, e.g., Ceja v. Department of
Transportation (2011) 201 Cal.App.4th 1475, 1481.) Appellants acknowledge
this is generally the case but argue “when a trial court grants a motion in
limine excluding evidence that a plaintiff needs to establish a defendant’s
liability and thereupon issues judgment for the defendant, the trial court’s
decision is akin to a nonsuit” such that de novo review is appropriate. (See,
e.g., Garner v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 673-674.)
We need not resolve this disagreement because, under either standard,
we conclude Appellants have failed to carry their burden on appeal to
affirmatively show reversible error. (Del Real v. City of Riverside (2002)
95 Cal.App.4th 761, 766.)
B.
Appellants argue, for the first time on appeal, that the motions in
limine were improper because neither SK Systems nor Petro “identified any
particular designated testimony, but instead sought to exclude all of it on
hearsay grounds without any consideration of whether specific testimony
might be admissible as either nonhearsay or under an exception to the
hearsay rule.” The resulting “lack of a detailed and context-based
evidentiary analysis is itself reversible error that requires remand.”
We agree with Respondents that Appellants forfeited this argument by
failing to raise it in the trial court. If Appellants believed more particularized
motions by Respondents or a more fulsome analysis by the court were
required, they should have raised these issues below, where they could have
been remedied. By waiting until appeal to raise this argument, Appellants
deprived Respondents and the trial court of the opportunity to cure this
alleged defect in their motions and the subsequent ruling, thereby forfeiting
the issue. (People v. Partida (2005) 37 Cal.4th 428, 436.)
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C.
Appellants claim the court erred in failing to consider whether the prior
deposition testimony was admissible as nonhearsay “to show what [SK Corp.
and SK Systems] knew about the hazards of [their] products and when”
rather than for the truth of the matter asserted. Appellants have forfeited
this claim.
First, Appellants do not assert any nonhearsay purpose as to Oatey,
Petro, or B’Laster. Second, as SK Systems notes, “Appellants in their
opening brief to this Court cite nothing from the record that supports their
contention that any of the Talley deposition testimony constitutes putative
non-hearsay, notice or ‘state-of-the-art’ evidence.” Indeed, Appellants’
opening brief fails to identify any specific deposition testimony that qualifies
as admissible nonhearsay. “Appellate records can, of course, be massive;
simply asserting ‘it is somewhere in there’ is no good.” (Cardenas v. Los
Angeles Unified School District (2026) 120 Cal.App.5th 554, 556.)
Accordingly, Appellants have forfeited their nonhearsay argument on appeal.
(Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 89-
90.)
D.
Appellants contend the court erred in finding the prior deposition
testimony inadmissible under Evidence Code section 1291. We conclude
(1) Appellants forfeited this argument as to Petro, Oatey, and B’Laster; and
(2) the Talley deposition testimony is inadmissible under this provision as to
SK Systems because SK Corp. did not have a similar “interest and motive” to
cross-examine the deponents in 1998 as SK Systems does now. (§ 1291(a)(2).)
Petro claims Appellants forfeited this claim as to it because Appellants
“do not identify Petro Source in this section or assert any argument that the
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court erred in granting Petro Source’s motion in limine on this ground.” Nor
do Appellants identify and make arguments concerning Oatey and B’Laster
on this point. Appellants do not reference any of these parties with regard to
section 1291 in reply. Accordingly, we conclude Appellants have forfeited the
issue of whether the court erred in finding section 1291 inapplicable to Petro,
Oatey, and B’Laster.
Under section 1291(a)(2), “[e]vidence of former testimony is not made
inadmissible by the hearsay rule if the declarant is unavailable as a witness
and . . . [t]he party against whom the former testimony is offered was a party
to the action or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an interest and
motive similar to that which he has at the hearing.”
The parties all appear to accept the deponents are unavailable in this
matter. We determine, however, that SK Systems—regardless of whether it
is considered the same party as SK Corp.—did not have the “opportunity to
cross-examine the declarant with an interest and motive similar to that
which [it] has at the hearing.” (§ 1291(a)(2).)
In Berroteran, our high court provided a comprehensive analysis of
section 1291(a)(2). Berroteran explained the section “articulates what is, in
effect, a general rule against admission at trial . . . of prior testimony from a
typical discovery deposition.” (Berroteran, 12 Cal.5th at p. 894.) But it is not
a blanket rule, and “[t]he party urging admission of deposition testimony
bears the burden of rebutting the general rule by submitting appropriate
information justifying the admission of designated deposition testimony.”
(Id. at p. 895.)
Berroteran then provided a framework for courts conducting the
“factually intensive inquiry” required by a motion to exclude under the
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provision. (Berroteran, 12 Cal.5th at p. 900.) A court initially must
determine whether there was an express agreement or other evidence that
the parties intended at the outset that the deposition testimony would serve
as trial testimony or whether the parties subsequently reached an agreement
to use the deposition testimony at trial in the same case or others. (Id. at
pp. 900-901.) If “it is not evident that the parties understood that a
deposition was intended for purposes other than discovery,” “the party
proposing to introduce the testimony [must] carr[y] its burden of
demonstrating that the opposing party had the required interest and motive.”
(Ibid.) The party and the court should consider “various practical
considerations” (ibid.), including: (1) “[t]he timing of the deposition within the
context of the litigation, and special circumstances creating an incentive for
cross examination”; (2) “[t]he relationship of the deponent and the opposing
party”; (3) “[t]he anticipated availability of the deponent at trial in the
proceeding in which the deposition was taken, and the statutory context”;
(4) “[c]onduct at, and surrounding, the deposition”; (5) “[t]he particular
designated testimony”; and (6) “‘[s]imilarity of position.’” (Id. at pp. 902-904,
italics omitted.)
Here, Appellants have not shown any agreement, either at the outset of
Talley or subsequently, that the deposition testimony would serve as trial
testimony. Appellants claim they “submitted undisputed evidence showing
that all parties intended and understood that the Safety-Kleen witnesses’
videotaped depositions would be used at future trials.” But SK Systems
points to record evidence to the contrary, namely Appellants’ counsel’s
concession during a 2022 hearing in Los Angeles in Safety-Kleen Solvent
Cases (Super. Ct. L.A. County, No. JCCP4601) that there was no stipulation
between the parties that the depositions could be used in future litigation.
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We further conclude the Berroteran considerations, on balance, do not
support a determination that SK Corp. had a similar motive and interest to
cross-examine the Talley deponents as SK Systems has as to the trial in this
matter.
The first consideration does not support finding the depositions
admissible. Appellants claim SK Corp., “having already been sued by
numerous plaintiffs, was educated as to the grounds for their causes of
action, as well as the facts surrounding the government’s criminal
investigation [of SK Corp.] and its own imminent bankruptcy.” But
Appellants point to no record evidence that the parties had “been educated by
discovery conducted in earlier, similar lawsuits”; that the depositions
occurred late in the discovery process; or that SK Corp. was incentivized to
conduct aggressive cross-examination in advance of a mediation or settlement
conference. (Berroteran, 12 Cal.5th at p. 902.) Further, as SK Systems
points out, SK Corp. did not file for bankruptcy for another two years, and
Appellants point to no record evidence that anyone was aware of the
potential for bankruptcy at the time of the depositions. And the U.S.
Securities and Exchange Commission press release on which Appellants rely
regarding the investigations into SK Corp. indicates “the fraudulent scheme
was discovered in late February 2000”—more than a year after the
depositions at issue here had concluded. Appellants thus fail to substantiate
their claim that alleged “turmoil” at the time made the depositions anything
other than ordinary discovery depositions.
The second consideration also weighs against admissibility. “A party
rarely has an interest and motive to cross-examine deponents with whom the
party has a close or aligned relationship, such as officers and employees of a
corporation.” (Berroteran, 12 Cal.5th at p. 902.) Ten of the deponents were
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SK Corp. employees at the time of their depositions, and 13 were former
employees. Although “the likelihood of a substantial interest in cross-
examination may increase as the strength of the relationship between the
deponent and the opposing party diminishes or if it is antagonistic, as is
sometimes the case concerning former employees of a corporation” (ibid.),
Appellants point to no record evidence that such was the case here.
Accordingly, this consideration supports finding the depositions inadmissible.
The third consideration weighs slightly in favor of admissibility. The
deponents were located in Illinois, while the Talley litigation was pending in
California. As a result, many of the witnesses may have been “not amenable
to subpoena.” (Berroteran, 12 Cal.5th at p. 902.) Although SK Systems
argues the deponents “could have appeared voluntarily,” no record evidence
supports this assertion. Then again, no record evidence supports their
unwillingness to appear voluntarily, either.
The fourth consideration is neutral. The depositions, all of out-of-state
witnesses, were videorecorded. Counsel for defendants, including SK Corp.,
occasionally mentioned stating things “for the jury” during the depositions.
During one deposition, SK Corp.’s attorney wanted to have a conference
“outside the presence of the jury.” Appellants’ counsel also mentioned more
than once during the depositions the possibility the jury may see the
videotape and specifically told multiple witnesses the depositions were being
recorded so they would not have to testify at trial in California. On the other
hand, SK Corp. did not cross-examine the majority of the 23 deponents, and
the cross-examination SK Corp. did undertake was limited in scope,
suggesting it anticipated having a subsequent opportunity to cross-examine
the witnesses. While Appellants point to the cross-examination of
two witnesses in particular as supporting admission, we are unconvinced the
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scope of the cross-examination as a whole indicates SK Corp. intended to use
the depositions as a substitute for trial testimony.
The fifth consideration also weighs against admission, as Appellants
have not identified any particular designated testimony as to which SK Corp.
had an interest and motive for cross-examination.
The sixth and final consideration appears neutral. SK Corp. and SK
Systems were both sued by persons who claimed to have been injured by
exposure to their solvent, making the Talley and present suits at least
facially parallel. Yet the cases concern different illnesses, and this case
involves additional compounds beyond benzene, the only substance at issue
in Talley.
On balance, even viewing the facts in the light most favorable to
Appellants, we cannot conclude these practical considerations weigh in favor
of admissibility or that the trial court abused its discretion in reaching the
same result.
E.
Appellants also argue the evidence is admissible as party or authorized
admissions. Appellants take issue with the trial court’s finding that sections
1220 and 1222 are inapplicable to former deposition testimony ruled
inadmissible under section 1291. We, however, agree that testimony
inadmissible under section 1291 cannot be made admissible by other hearsay
exceptions such as sections 1220 and 1222.
Appellants argue “[s]ection 1291 itself does not state that if former
testimony is inadmissible under that section, it is precluded from admission
under any other exception to the hearsay rule.” While true, any other
interpretation would undermine Berroteran’s “general rule against admission
at trial . . . of prior testimony from a typical discovery deposition.”
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(Berroteran, 12 Cal.5th at p. 894.) It would also drastically alter the
landscape of discovery depositions, turning a fact-finding device into a
potential weapon in perpetuity usable in litigation not even anticipated at the
time of the deposition. Allowing such an end-run around section 1291 would
essentially force extensive cross-examination to undermine any admissions
made. As Berroteran notes, most leading treatises presently caution against
cross-examination at depositions. (Berroteran, at p. 893.) Accepting
Appellants’ position would turn deposition practice on its head. Such a
position is unsupportable. Accordingly, because the Talley deposition
testimony is inadmissible under section 1291, it cannot be admissible against
Respondents as party or authorized admissions instead.
F.
Finally, Appellants claim the evidence is admissible under Code of Civil
Procedure section 2025.620. We disagree.
The provision relevantly provides:
At the trial or any other hearing in the action, any part or
all of a deposition may be used against any party who was
present or represented at the taking of the deposition, or
who had due notice of the deposition and did not serve a
valid objection under Section 2025.410, so far as admissible
under the rules of evidence applied as though the deponent
were then present and testifying as a witness, in
accordance with the following provisions:
[¶] . . . [¶]
(b) An adverse party may use for any purpose, a deposition
of a party to the action, or of anyone who at the time of
taking the deposition was an officer, director, managing
agent, employee, agent, or designee under Section 2025.230
of a party.
[¶] . . . [¶]
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(g) When an action has been brought in any court of the
United States or of any state, and another action involving
the same subject matter is subsequently brought between
the same parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed in the
initial action may be used in the subsequent action as if
originally taken in that subsequent action. A deposition
previously taken may also be used as permitted by the
Evidence Code.
Appellants reference only subdivision (b) in their opening brief,
although they also point to subdivision (g) in reply. Neither, however, helps
Appellants.
By its terms, subdivision (g) applies only to actions involving “the same
parties or their representatives or successors in interest.” Appellants are
different plaintiffs than those in Talley or Gillan. Accordingly, Appellants
failed to establish subdivision (g) applies here.
As to the remainder of section 2025.620, Appellants claim it “does not
require the testimony to have been given in the same action as that in which
it is to be used. Indeed, the statute does not say the following: ‘At the trial or
any other hearing in the action in which a deposition is taken, any part or
all of that deposition may be used against any party who was present or
represented at the taking of the deposition.’” Even so, we conclude the
provision must be interpreted as applying only to depositions taken in the
same action. Any other interpretation would cause other provisions of the
Evidence Code to be surplusage, and “‘[a]n interpretation that renders
statutory language a nullity is obviously to be avoided.’” (Tuolumne Jobs &
Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1039.)
If, for example, subdivision (b) applied to depositions taken in previous
actions, there would be no need for subdivision (g), which would be subsumed
15
by the much broader subdivision (b). And the last sentence of subdivision (g)
references other provisions of the Evidence Code, such as section 1291(a)(2),
which would also be rendered superfluous if subdivision (b) applied to
deposition testimony from prior cases. We must accordingly avoid
Appellants’ interpretation and instead conclude that subdivision (b) applies
only to depositions taken in the same action. Accordingly, the Talley
deposition testimony is not admissible under section 2025.620.
* * *
Given our resolution of the issues above, we need not decide whether
SK Systems and SK Corp. are the same party for admissibility purposes.
III.
We affirm. Respondents are entitled to their costs on appeal.
CASTILLO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DO, J.
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